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United States Court of Appeals 

for the 

District of Columbia Circuit 



TRANSCRIPT OF 
RECORD 






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Eobebt E. Walton, Jb. 


No. 11,394 


Eobebt E. Walton, Jb. 


APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA • 


CHARLES M. IRELAN 

United States Attorney 


GRACE B. STILES . 

JOSEPH M. HOWARD 
LEWIS A. CARROLL 

, Assistant United States. Attorneys 











QUESTIONS PRESENTED 

Appellant and his co-defendant were sentenced by the 
trial court and given different terms of imprisonment. At 
the time of sentencing, the court considered the mitigating 
circumstances submitted orally by counsel and by appellant 
in writing. Shortly thereafter, the court vacated the sen¬ 
tences and imposed new sentences, explaining that it had 
the names of the two defendants confused at the time the 
first sentences were handed down. Counsel was not present 
at the time of the resentencing. Appellant brought a 
motion to vacate sentence, which was denied on February 
18, 1949. He brought a second motion to vacate sentence 
on January 10, 1952, and, from the order denying his 
motion, appellant now brings this appeal. 

In the opinion of appellee, the following questions are 
presented: 

1. Is an accused entitled, as a matter of right, to the 
assistance of counsel at the time he is resentenced when 
the facts indicate that all the mitigating circumstances 
were brought before the court by counsel for the accused 
at the time the original sentence was imposed and, further, 
that the resentencing came as a result of confusion as to 
the names of two co-defendants and not by virtue of a 
change of opinion on the part of the court? 

2. Is an accused entitled, as a matter of right to have 
the trial court entertain a second motion to vacate sentence 
made pursuant to Title 18 U.S.C. § 2255 when such motion 
presents substantially the same questions that were raised 
in a former motion ? 

3. Is an accused, who has been improperly sentenced, 
entitled to be released or should he be taken before the 
trial court and properly resentenced? 




INDEX 


Page 


Counterstatement of the Case . 1 

Statutes Involved . 8 

Summary of Argument . 11 

Argument: 


I. Although the General Rule Appears to Be That an Ac¬ 
cused Is Entitled to the Assistance of Counsel at the Time 
He Is Sentenced, Appellant Suffered No Deprivation of 
His Constitutional Rights When Counsel Was Not Present 
at the Time His Sentence Was Corrected Because the 
Facts of the Case Clearly Show That Appellant Was Not 
Prejudiced Thereby . 12 

II. Assuming, Arguendo , That Appellant Had the Right to 
Assistance of Counsel at the Time He Was Rcsentenced, 
the Lower Court Did Not Abuse Its Discretion in Denying 
the Motion to Vacate Sentence Here in Issue Because It 
Was Not Required to Entertain a Second or Successive 
Motion for Similar Relief. 14 

III. Assuming That Appellant was Entitled to Assistance of 
Counsel at the Time He was Resentenced and Further 
Assuming That the Lower Court Should Have Enter¬ 
tained, as a Matter of Right, the Second Motion to Vacate 
Sentence, Appellant Is Not to Be Released But Merely 
Brought Before the Lower Court and, with Counsel Pres¬ 
ent Resentenced in Accordance with the Intent of the 


Trial Court . 16 

Conclusion . 17 

TABLE OF CASES 

Alexander v. United States, (1943) 48 App. D.C. 34,136 F. 2d 783 14 

Barrett v. Hunter, (1950) (C-C.A. 10) 180 F. 2d 510, cert, denied 

340 U.S. 897 . 16 

Barrow v. United States, (1924) 54 App. D.C. 128, 295 F. 949 .. 17 

Batsony. United States, (1943) (C.C.A. 10) 137 F. 2d 288 . 12 

Birtch v. Hunter, (C.C.A. 4) 164 F. 2d 880, cert, denied 333 U.S. 

848, reh. den. 333 U.S. 870 . 16 

Birtch v. United States, (1949) (C.C.A. 10) 173 F. 2d 316, cert. 

denied 337 U.S. 944 . 16 

Bruno v. United States, (1949) 86 App. D.C. 118, 180 F. 2d 393 .. 15 

Chinn v. United States, 157 F. 2d 1013. 16 

Chinn v. United States, 163 F. 2d 876 . 16 

Egan v. United States, (1923) 52 App. D.C. 384, 287 F. 958 .... 17 

Evans v. Rives, (1942) 75 App. D.C. 242, 126 F. 2d 633 . 12 

Howell v. United States, (1949) (C.C.A. 4) 172 F. 2d 213, cert. 

denied 337 U.S. 906 . 17 

Johnson v. Zerbst, 304 U.S. 458 . 12 

Kent v. Sanford, (1941) (C.C.A. 5) 121 F. 2d 216, cert, denied 

315 U.S. 799 . 12 

Lowom v. Johnston, (1941) (C.C.A. 9) 118 F. 2d 704 . 12 

Martin v. United States, (1950) (C.C.A. 5) 182 F. 2d 225 . 17 


li 
























r 


Martyn V. United States, (1949) (C.C.A. 8) 176 F. 2d 609 . 16 

McJordan v. Huff, (1943) 77 App. D.C. 171. 14 

Moss v. Hunter, 167 F. 2d 683, cert, denied 860 . 16 

Moss v. United States, (1949) (C.C.A. 10) 177 F. 2d 439 . 16 

PoweU. v. Alabama, 287 U.S. 46, 84 A.L.R. 627 . 12 

Price v. Zerbst, (1920) 268 F. 72. 17 

Rowley v. Welch, (1940) 72 App. D.C. 351, 114 F. 2d 499 . 16 

Smith v. Hunter, (1950) 88 App. D.C. 80, 187 F. 2d 192, cert. 

denied 341 U.S. 927 . 12 

Smith v. United States, (1950) 88 D.C. 80, 187 F. 2d 192, cert. 

denied 341 U.S. 927 . 15 

Story V. United States, (1950) (C.C.A. 8) 185 F. 2d 952 . 15 

Thomas v. Hunter, (1948) (C.C.A. 10) 153 F. 2d 834 . 12 

United States v. Chinn, 74 F. Supp. 189 . 16 

United States v. Chinn, (1949) (U.S.D.C.S.D.W.Va.) 87 F. Supp. 

364 . 16 

Wefong v. Johnston, (1946) (C.C.A. 9) 156 F. 2d 507 . 17 

Willis v. Hunter, (C.C.A. 10) 166 F. 2d 721, cert, denied 334 U.S. 

848 . 12 

OTHER REFERENCES 

20 A.L.R. 2d 976 . 16 

Federal Rules of Criminal Procedure, Rule 44. 12 

Title 18 U.S.C. § 3568 . 7 

United States Constitution, Amendment VI . 12 


























©ntteb States Court of Appeals! 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 


No. 11,393 


Robert E. Walton, Jr., appellant 

v. 

United States of America, appellee 


No. 11,394 


Robert E. Walton, Jr., appellant 

v. 

United States of America, appellee 


APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 


BRIEF FOR APPELLEE 


counterstatement of the case 

Appellant is bringing this appeal from an order of the 
District Court which denied, after a hearing, his motion 
to vacate the sentence imposed upon him in Criminal cases 
Nos. 904-48 and 1119-48. 

1. As to Criminal case No. 904-48: An indictment filed 
in the District Court charged in the first count thereof, 
that on or about June 9,1948, within the District of Colum¬ 
bia, appellant and Walter M. Kendall entered the building 

(l) 





2 


of the Palace Laundry Dry Cleaning Corporation, a cor¬ 
poration, with intent to steal the property of another (D. 
C. Code (1940) § 22-1801), and in the second count charged 
that, on or about June 9, 1948, within the District of Co¬ 
lumbia, appellant and Walter M. Kendall stole property 
of the Palace Laundry Dry Cleaning Corporation of the 
value of about $1651.25 (D. C. Code (1940) §§2201, 2202) 
(J.A. 23-24) (R. 13,15). 1 Appellant and Walter M. Kendall 
entered pleas of not guilty (R.16) and made a motion that 
the stolen property be suppressed and be denied admission 
in evidence on the ground that it was obtained by illegal 
search and seizure (R. 17-18). 2 The motion to suppress 
was denied after a hearing and the case proceeded to trial 
before a jury (R. 20). Appellant and Walter M. Kendall 
were found guilty as charged on both counts and each case 
was referred to the Probation Officer (R. 21). 

2. As to Criminal Case No. 1119-48. An indictment filed 
in the District Court charged that, on or about May 14, 
1948, within the District of Columbia, appellant and Walter 
M. Kendall by force and violence and against resistance and 
by sudden and stealthy seizure and snatching and by putting 
in fear stole and took from the person and from the immedi¬ 
ate actual possession of George R. Saint-Pol, certain prop¬ 
erty of George R. Saint-Pol, of the value of about $119.25 3 
(D. C. Code (1940) §22-2901) (J.A. 27); the second count 
charged that, on or about May 24, 1948, within the District 
of Columbia, appellant stole a Buick automobile of the 
value of $2000.00 from George R. Saint-Pol (D. C. Code 
(1940) §22-2201) (J.A. 27); the third count charged that, 
on or about June 9, 1948, within the District of Columbia, 


1 An itemized list of the stolen property includes forty suits, one vest, thirty- 
five shirts, fifteen sheets, fifteen shirts, fifteen collars, twenty-four towels, 

twenty pairs of shorts, twenty shirts, twelve pairs of pants, eight dresses, four 
pairs of gloves, one radio and $5.00 in money (J.A. 23-24). 

3 The Government opposed the motion, contending that appellant failed to 
show any ownership in, or right to possession of, the premises searched or the 
property seized (R. 19). 

*An itemized list of the stolen property includes a wallet, two dollars in 
money, a Buick automobile ignition key, a watch, a ring and various cards and 
permits (J.A. 27). 





3 


appellant and Walter M. Kendall entered the building of 
Willis V. Austin, Jr., with the intent to steal the property 
of another (D. C. Code (1940) § 22-1801) (J.A. 27-28); the 
, fourth count charged that on or about June 9, 1948, within 
the District of Columbia appellant and Walter M. Kendall 
stole the property of Willis V. Austin, Jr., of the value of 
$152.55 (D. C. Code (1940) §22-2201) (J.A. 28) 4 ; the 
fifth and sixth counts charged that on or about June 9, 
1948, within the District of Columbia, appellant and Walter 
M. Kendall, with intent to defraud, forged in its entirety 
a bank check in the amount of forty-three dollars and 
twenty-seven cents, and passed and uttered to Ezekiel 
Abraham as true and genuine the forged check, well know¬ 
ing the check to be forged (J.A. 28-29); the seventh and 
eighth counts charged that, on or about June 11, 1948, 
within the District of Columbia, appellant and Walter M. 
Kendall, with intent to defraud, forged in its entirety a 
bank check in the amount of forty-nine dollars and twenty- 
seven cents, and passed and uttered to Clifford Anderson 
as true and genuine the forged check, well knowing the 
check to be forged (J.A. 29-30); the ninth and tenth counts 
charged that, on or about June 12, 1948, within the District 
of Columbia, appellant and Walter M. Kendall, with intent 
to defraud, forged in its entirety a bank check in the 
amount of fifty-one dollars and eighty-two cents, and passed 
and uttered to Adeline Felix as true and genuine the 
forged check, well knowing the check to be forged (J.A. 
30-31); and the eleventh and twelfth counts charged that, 
on or about June 12, 1948, within the District of Columbia, 
appellant and Walter M. Kendall, with intent to defraud, 
forged in its entirety a bank check in the amount of fifty- 
one dollars and eighty-two cents, and passed and uttered 
to Ellen Johnson as true and genuine the forged check, 
well knowing the check to be forged (J.A. 31). (D. C. 

* An itemized list of the stolen property includes: five cans of oil, seven cans 
of fluid, one radio, ten dollars and ninety cents in United States postage 
stamps, fifteen dollars and thirty-five cents in money, four suits of overalls, 
five pairs of pants, five shirts, two belts, two pens, two screwdrivers, two pairs 
of pliers, one tire iron, five cartons of cigarettes, one pair of slacks, one shirt, 
one sweater, one coat, two flashlights, one pencil and one checkbook (J.A. 28). 




4 


Code (1940) §22-1401). 5 Appellant and Walter M. Ken¬ 
dall, after withdrawing their original pleas of not guilty 
(R. 37), entered pleas of guilty to the charges against 
them 6 and each case was then referred to the Probation . 
Officer (R. 39). 

3. As to the Motions to Vacate Sentence: Appellant and 
Kendall were sentenced on October 11, 1948, and the perti¬ 
nent portions of the record indicates that the following 
action was taken (J.A. 18-20). 7 

PROCEEDINGS 

THE COURT: In the matter of Robert E. Walton, 
Jr., I have just been presented with a writing with a 
notice on it “average reading time 30 minutes.” I 
have not had 30 minutes—in fact, I have had only one 
minute—so I will postpone this sentence of Walter M. 
Kendall until 11 o’clock this morning. 

(Eleven o’clock a.m.) 

THE DEPUTY CLERK: Robert E. Walton, Jr., 
and Walter M. Kendall. 

THE COURT: Robert E. Walton, Jr., have you 
anything to say before I pronounce sentence? 

DEFENDANT WALTON: The only thing I have, 
your Honor, is I would wish your Honor to keep in 
mind that we have been in District Jail for four 
months. I would also like to thank you for reading 
that letter before passing sentence. 

THE COURT: Do you wish to say anything for 
them? 


8 The bank checks referred to in the fifth through the twelfth counts were all 
drawn on the Riggs National Bank, Friendship Branch. Each one was made 
payable to George R. Saint-Pol and each one contained an endorsement on the 
back “George R. Saint-Pol 3511 Rodman St. N.W.” The drawer of each check 
was Austin’s Esso Service Station, Joseph E. Austin (R-32-35). It is to be 
noted that, in the fourth count, appellant and Kendall were charged with steal¬ 
ing, inter alia, a checkbook from Willis V. Austin, Jr. (see Note #4, supra 
(R. 32). 

* Appellant entered a plea of guilty to the entire indictment. Kendall en¬ 
tered a plea to all counts but Count No. Two because only appellant was 
charged with the commission of the offense set out in that count. 

7 As to Criminal No. 904-48 see J.A. 24; and as to Criminal No. 1119-48 see 
J.A. 31-32. 



5 


MR. LEONARD: Only in connection that the boys 
were held down in jail almost four months, as your 
Honor knows, and I don’t think it was entirely due to 
their fault there. That is, there were three indict¬ 
ments, as your Honor recalls, which were dismissed as 
being either unsatisfactory or incomplete, and it was 
because of those reindictments, of course, that they 
were held down there so long, and I was hoping that 
vour Honor would take that into consideration in con- 
nection with the sentence. Also, there is the matter 
of the boys’ ages which your Honor knows, having 
before him the report from the probation office. AJso, 
this is the first offense as adults. They do have a 
juvenile record, but this is the first offense as adult of¬ 
fenders. 


THE COURT: Yes, but there are so many offenses. 
You shall be sentenced in one indictment on the charge 
of housebreaking, on one count, larceny and grand 
larceny on another, and other indictments. He is to 
be sentenced on one count of robbery, one count of 
housebreaking, two counts of grand larceny, four 
counts of forgery, and four counts of uttering. 

MR. LEONARD: That is true, your Honor, that the 
offenses are serious and numerous, but of course I do 
think that there is a social factor involved here which 
should be taken into consideration. 

THE COURT: Well, in view of his record I am 
not going to fix a very heavy sentence, but I sentence 
him to one to three years on each offense, all to run 
concurrently. 

Now, Walter M. Kendall, have you anvthing to say? 

DEFENDANT KENDALL: No, sir. 

MR. LEONAJRD: Nothing other than what I have 
already said, your Honor. 

THE COURT: Kendall has a long record. He has 
also written an explanation or excuse for some of his 
offenses, but he has shown an entire disregard for the 
rights of others. 8 

He is to be sentenced in one indictment of house- 

* This remark shows clearly that the court having delayed the proceedings 
in order to read a letter from appellant, was merely confused as to names and, 
also, that the mitigating circumstances of the case were taken into consider¬ 
ation. 




6 


breaking and grand larceny and in another for rob¬ 
bery, and another count of housebreaking and grand 
larceny, and four counts of forgery, and four counts 
of uttering. 

On the charge of robbery I will fix the sentence at 
from four to twelve years. On each of the other of¬ 
fenses from two to six years. All to run concurrently, 
and there will be no time allowed for either of these 
men for the time they have been in jail. 

(Eleven-fifteen a.m.) 

THE COURT: Walter M. Kendall, I got your name 
and Robert E. Walton’s name confused, and I set aside 
the sentence that I gave you and fix the sentence at 
one to three years on each offense instead of the other. 

And Walton, I made the same mistake with you, and 
I fix your sentence at from four to twelve years on the 
charge of robbery and from two to six years on these 
other counts; all to run concurrents. 

•j 

There will be no time allowed for the time in jail. 

Unless either of you have something further to say— 

DEFENDANT WALTON: Pardon? 

THE COURT: If you have anything further to 
say, I would be glad to to hear it. 

DEFENDANT WALTON: Yes, your Honor, I do. 

THE COURT: I read your letter through. 9 

DEFENDANT WALTON: There is just one thing, I 
would like to ask your Honor. Isn’t it a little bit 
illegal? You have already sentenced me from one to 
three concurrently. 

THE COURT: The sentence from one to three 
years is vacated and I substituted the other sentences, 
and those sentences were entered and made by mis¬ 
take in my confusing you and your co-defendant. 

• • • • • 

Thereupon, on January 17, 1949, appellant filed a mo¬ 
tion to vacate sentence in conjunction with a Writ of Error 
Corum Nobis in which he contended that his second sen- 


• This remark indicates that the court had not changed its opinion as to the 
mitigating circumstances of the case but was resentencing the defendants in 
order to rectify its confusion as to the names of appellant and his co-defendant. 




7 


tence was illegal because the second sentencing placed him 
in double jeopardy and because he had been sentenced 
twice for the same charges (J.A. 25-26). A hearing was held 
on the motion on February 18, 1949, at which time it was 
argued that it had been too late to resentence the defend¬ 
ants because they had started to serve their sentences prior 
to the time the second sentence was imposed. Title 18 U.S.C. 
§ 3568 (J.A. 20-23). However, the court held that they had 
remained in the control of the court (J.A. 22-23) and appel¬ 
lant’s motion was denied (J.A. 26). 

On March 18, 1949, the court dismissed, after a hearing, 
appellant’s petition for a writ of habeas corpus (R. 29). 
It was held that appellant was outside the territorial juris¬ 
diction of the court at the time the petition was filed 
(Habeas Corpus No. 3510). Almost two years later, on 
January 10, 1952, appellant filed a motion to vacate sen¬ 
tence pursuant to Title 28, U.S.C. § 2255, 10 contending that 
the trial court had no legal authority to increase his sen¬ 
tence; that he was denied the constitutional right to have 
counsel assist him at the time he received the increased 
sentence; and that, inasmuch as he has served the first sen¬ 
tence imposed upon him, he is entitled to be released 
(J.A. 32-35). 

The motion was referred to the United States Attorney 
by the trial court on February 15, 1952, in order that a 
pleading might be prepared as to the facts in both Criminal 
Case No. 904-48 and Criminal Case No. 1119-48 because the 
court felt that appellant had not made the issues clear with 
regard to the sentencing (J.A. 35). The memorandum 
filed by the United States Attorney on March 13, 1952, re¬ 
viewed the facts of the cases and stated that the issues to 
be determined were whether appellant was represented by 
counsel at the time his sentence was increased, and, if not 
whether his constitutional rights had been violated thereby 
(R. 55-60). 

10 Prior to filing the motion to vacate sentence, appellant filed a petition for 
court records (R. 42-44), together with an affidavit in forma pauperis (R. 45), 
which was granted (R. 46). 


8 


On March 13, 1952, the court, after reviewing the facts 
and finding that the question concerning “a place of deten¬ 
tion” and commencement of service of sentence had been 
properly decided at the hearing on the first motion to va¬ 
cate sentence (J.A. 36-38), entered the following pertinent 
findings (J.A. 38): 

The record in this case indicates that Robert S. 
Leonard, Esq., the attorney for both defendants, al¬ 
though present at the hearing of the original sentence 
was apparently not in court when the sentence was 
changed. While the appearance of counsel at several 
stages of the proceedings is important, his absence 
when the correction took place in no wise affected the 
rights of the defendant, Walton. Prior to the passing 
of sentence, Mr. Leonard made a statement to the 
Court, and the Court seemingly acknowledges his rec¬ 
ommendations, for with the petitioner’s multiple pleas 
of “guilty” and prior record, he still limited the total 
sentence to “from four to twelve years”. It is diffi¬ 
cult to imagine what new mitigating circumstances 
could have intervened for the court’s consideration 
in the period of fifteen minutes. Batson v. United 
States , 137 F. 2d 288. The calling back of the defend¬ 
ant was for the sole purpose of pronouncing sentence 
in accordance wdth the Court’s true intent. No preju¬ 
dice is shown to have resulted from counsels’ absence, 
therefore, this Court holds as a matter of f;act and 
of law that the present motion to vacate the sentence 
be overruled. 

From the order denying the motion to vacate sentence 
(R. 65), appellant, who is presently confined in the federal 
penitentiary at Leavenworth, Kansas, now brings this ap¬ 
peal R. 66-70). 


STATUTES INVOLVED 

D. C. Code (1940) section 1401 provides: 

Whoever, with intent to defraud or injure another, 
falsely makes or alters any writing of a public or pri¬ 
vate nature, which might operate to the prejudice of 
another, or passes, utters, or publishes, or attempts to 
pass, utter, or publish as true and genuine, any paper 
so falsely made or altered, knowing the same to be 
false or forged, with the intent to defraud or prejudice 


9 


the right of another, shall be imprisoned for not less 
than one year nor more than ten years. 

D. C. Code (1940) section 1801 provides: 

Whoever shall, either in the night or in the day¬ 
time, break and enter, or enter without breaking, any 
dwelling, bank, store, warehouse, shop, stable, or other 
building, or any apartment or room, whether at the 
time occupied or not, or any steamboat, canal boat, 
vessel, or other watercraft, or railroad car, or any 
yard where any lumber, coal, or other goods or chattels 
are deposited and kept for the purpose of trade, with 
intent to break and carry away any part thereof or 
any fixture or other thing attached to or connected 
with the same, or to commit any criminal offense, shall 
be imprisoned for not more than fifteen years. 

D. C. Code (1940) section 2201 provides: 

WTioever shall feloniously take and carry away any¬ 
thing of value of the amount or value of $50 or upward 
including things savoring of the reality, shall suffer 
imprisonment for not less than one nor more than 
ten years. 

D. C. Code (1940) section 2202 provides: 

WTioever shall feloniously take and carry away any 
property of value of less than $50, including things 
savoring of the reality, shall be fined not more than 
$200 or be imprisoned for not more than one year, or 
both. And in all convictions for larceny, either grand 
or petit, the trial justice may, in his sound discretion, 
order restitution to be made of the value of the money 
or property shown to have been stolen by the defend¬ 
ant and made way with or otherwise disposed of and 
not recovered. 

D. C. Code (1940) section 2901 provides: 

Whoever by force or violence, whether against re¬ 
sistance or by sudden or stealthy seizure or snatching, 
or by putting in fear, shall take from the person or 
immediate actual possession of another anything of 
value, is guilty of robbery, and any person convicted 
thereof shall suffer imprisonment for not less than 
six months nor more than fifteen years. 






10 


Title 28 U.S.C. section 2255 provides: 

A prisoner in custody under sentence of a court of 
the United States claiming the right to be released 
upon the ground that the sentence was imposed in 
violation of the Constitution or laws of the United 
States, or that the court was without jurisdiction to 
impose such sentence, or that the sentence was in ex¬ 
cess of the maximum authorized by law, or is other¬ 
wise subject to collateral attack, may move the court 
which imposed the sentence to vacate, set aside or 
correct the sentence. 

A motion for such relief may be made at any time. 

Unless the motion and the files and records of the 
case conclusively show that the prisoner is entitled 
to no relief, the court shall cause notice thereof to be 
served upon the United States attorney, grant a prompt 
hearing thereon, determine the issues and make find¬ 
ings of fact and conclusions of law with respect 
thereto. If the court finds that the judgment was 
rendered without jurisdiction, or that the sentence 
imposed was not authorized by law’ or otherwise open 
to collateral attack, or that there has been such a denial 
or infringement of the constitutional rights of the 
prisoner as to render the judgment vulnerable to col¬ 
lateral attack, the court shall vacate and set the judg¬ 
ment aside and shall discharge the prisoner or resen¬ 
tence him or grant a new’ trial or correct the sentence 
as may appear appropriate. 

A court may entertain and determine such motion 
writhout requiring the production of the prisoner at 
the hearing. 

The sentencing court shall not be required to enter¬ 
tain a second or successive motion for similar relief 
on behalf of the same prisoner. 

An appeal may be taken to the court of appeals 
from the order entered on the motion as from a final 
judgment on application for a wrrit of habeas corpus. 

An application for a writ of habeas corpus in behalf 
of a prisoner who is authorized to apply for relief by 
motion pursuant to this section, shall not be enter¬ 
tained if it appears that the applicant has failed to 
apply for relief, by motion, to the court which sen¬ 
tenced him, or that such court has denied him relief, 
unless it also appears that the remedy by motion is 


11 


inadequate or ineffective to test the legality of his 
detention. 

SUMMARY OF ARGUMENT 

Appellant maintains that his constitutional rights were 
violated when, in the absence of his counsel, he was re- 
sentenced and given a more severe sentence. He also main¬ 
tains that the court committed reversible error when it 
resentenced him because he had already began to serve the 
first sentence imposed upon him. As a consequence of 
these alleged errors, appellant now contends that, having 
fully served his first sentence, he should be released from 
the penitentiary in which he is presently confined. 

However, the facts of this particular case reveal that no 
prejudicial error was suffered upon appellant when he was 
resentenced in the absence of counsel. All of the mitigating 
circumstances surrounding the pending sentence were dis¬ 
closed to the trial court orally by counsel and by appellant 
in writing prior to the imposition of the first sentence. 
The second sentence was handed down not through a 
change of opinion on the part of the sentencing court, 
but merely as a result of the court’s confusion as to the 
names of appellant and his co-defendant In addition, 
appellant presented substantially the same issues in his 
second motion to vacate sentence made pursuant to Title 
18 U.S.C. § 2255, as were raised in his first motion. The 
lower court was not compelled to entertain the second mo¬ 
tion and the exercise of its discretionary power in doing 
so and in denying the second motion should not now be 
reviewed on appeal. If it assumed that appellant should 
have had the assistance of counsel at the time he was re¬ 
sentenced and if it is further assumed that the discretion¬ 
ary power of the lower court should be reviewed, this Court 
should not release appellant but should merely order that 
he be brought before the lower court and resentenced in 
the presence of counsel. 





12 


ARGUMENT 

L 

Although the General Rule Appears to Be That an Accused Is 
Entitled to the Assistance of Counsel at the Time He Is 
Sentenced, Appellant Suffered No Deprivation of His Con¬ 
stitutional Rights When Counsel Was Not Present at the 
Time His Sentence Was Corrected Because the Facts of 
the Case Clearly Show That Appellant Was Not Prejudiced 
Thereby. 

Although there appears to be a conflict in the state 
authorities on the question whether the presence of coun¬ 
sel for the accused at the time of sentence, in the absence 
of waiver by the accused, is necessary to the validity of 
the proceedings, 11 the federal courts seem to uniformly 
hold that an accused has the constitutional right to the 
assistance of counsel at the time of sentence. 12 . It ap¬ 
pears that this Court affords an accused the same consti¬ 
tutional protections which have been extended by the 
other federal courts. 13 

The reasoning behind the decisions in the federal courts 
is that, since many considerations influence the length of 
a sentence, an accused should have the opportunity to 
have his counsel present any mitigating circumstances to 
the court for its consideration in determining the weight 
of the sentence. 14 The Government does not, for the pur¬ 
poses of the instant case, contest such decisions nor the 
reasoning behind them. The facts of the case here on 
appeal indicate that appellant was represented by counsel 
throughout his trial before the jury in Criminal Case No. 

11 Batson v. United States, (1943) (C.CA. 10) 137 F.2d 288. 

11 United States Constitution, Amendment VI; Federal Rules of Criminal 
Procedure, Rule 44. 

** See: Smith v. Hunter, (1950) 88 App. D.C. 80, 187 F.2d 192, cert, denied 
341 U-S. 927; and Evans v. Eives, (1942) 75 App. D.C. 242, 126 F.2d 633. 

14 Batson v. United States, supra; Thomas v. Hunter, (1948) (C.CA. 10) 
153 F.2d 834; see also: Johnson v. Zerbst, 304 U.S. 458, 146 AJL.R. 357; 
Powell v. Alabama, 287 U.S. 45, 84 A.L.R. 527; Cf. Willis v. Hunter, (C.CA. 
10) 166 F.2d 721, cert denied 334 U.S. 848; Kent v. Sanford, (1941) (C.CA. 
5) 121 F.2d 216, cert, denied 315 U.S. 799; and Lowom v. Johnston, (1941) 
(C.CA. 9) 118 FJ2d 704. 




> 

904-48 and when he entered his plea of gnilty in Criminal 
Case No. 1119-48. He did not, and does not now, contest 
the fairness of such proceedings. Appellant was ener¬ 
getically and competently represented by counsel at the 
time the original sentence was imposed upon him and 
counsel presented a vigorous statement to the trial court 
on behalf of appellant, the effectiveness of which is re¬ 
flected in the short term, concurrent sentences that were 
handed down by the court. Therefore, the ordinary cases 
pertaining to absence of counsel at the time of sentencing 
are not applicable. 

In the instant case, counsel was not present when the 
first sentence imposed on appellant was vacated and the 
heavier sentence substituted therefore. The question is 
whether the constitutional rights of appellant were 
thereby violated. The Government maintains that, on the 
particular facts of this case, no such violation has been 
perpetrated. 

In the first place, appellant was ably represented 
throughout the trial and at the time of the original sen¬ 
tencing. Secondly, all of the mitigating circumstances, 
including a letter written by appellant, were presented to, 
and considered by the trial court. And thirdly, the trial 
court merely transposed the sentences which had been 
imposed upon the appellant and his co-defendant This 
is not the case where the trial court, in a case involving 
but one defendant, resentences the accused at a later time 
and thereby inflicts a more severe punishment upon him than 
was first imposed. Here, the trial court was considering 
a case involving two defendants. One of whom had com¬ 
mitted an additional offense, namely the theft of an auto¬ 
mobile. The court listened sympathetically to the re¬ 
marks of the counsel who represented both men and it 
considered the written comments of the one who had 
committed the additional offense. Then, out of a mere 
confusion of names, the court imposed the heavier sentence 
on the defendant charged with the least number of offenses. 
It is important to note that when, acting promptly, the court 


14 


corrected its error it gave the identical sentence to appellant 
which had been given to his co-defendant, and vice versa 
(see notes No. 8 and No. 9, supra, and J.A. 19-20). 

No claim is advanced here that appellant was denied 
the right to the assistance of counsel. Appellant merely 
contends that his counsel was not present at the time the 
second sentence was imposed on him. He does not show 
how he had been prejudiced by the absence of his counsel 
or how the presence of counsel would alter or affect his 
rights. 15 Indeed, he cannot do so for, on the facts, he has 
not been prejudiced and his constitutional rights have 
not been violated. The order of the District Court, there¬ 
fore, should not be disturbed. 

II 

Assuming, Arguendo, That Appellant Had the Right To Assist¬ 
ance of Counsel at the Time He Was Resentenced, the 
Lower Court Did Not Abuse Its Discretion in Denying the 
Motion to Vacate Sentence Here in Issue Because It Was 
Not Required to Entertain a Second or Successive Motion 
for Similar Relief. 

Appellant has made the instant motion to vacate sen¬ 
tence pursuant to the terms of Title 28 U.S.C. § 2255, the 
pertinent portions of which read as follows: 

The sentencing court shall not be required to enter¬ 
tain a second or successive motion for similar relief 
on behalf of the same prisoner. 

An appeal may be taken to the court of appeals 
from the order entered on the motion as from a final 
judgment on application for a writ of habeas corpus. 

The record shows that the first motion to vacate sen¬ 
tence in conjunction with writ of error Coram Nobis was 
argued and overruled on February 18, 1949. This motion 
contested the legality of the second sentence on the ground 
that appellant had begun to serve the first sentence prior 
to the time the second sentence was imposed. No appeal was 

18 See: Alexander v. United States, (1943 ) 48 App. D.C. 34, 136 F.2d 783 
and II cJ or dan v. Huff, (1943) 77 App. D.C. 171, 133 F-2d 408, to the effect 
that counsel need not be present at the arraignment of an accused. 


15 


taken from the order dismissing the motion. 1 * Appellant 
now brings a second motion to vacate sentence in which he 
attacks the validity of the second sentence on the same 
ground, and also on the ground that he was denied the 
presence of counsel at the time his sentence was corrected. 

Clearly, appellant cannot raise the point of detention and 
confinement in his second motion or in this appeal. This 
contention was fully treated in his first motion and he took 
no appeal from the adverse order. The lower court treated 
the same point in the instant motion as a matter of dis¬ 
cretion and not as a matter of right. Therefore, the 
discretionary power of the lower court as to the issue of 
confinement should not be reviewed in this appeal. 17 

In his second motion, appellant raises a new point, 
namely that he was denied counsel at the time he was re- 
sentenced. The question is whether the trial court was 
bound to entertain the second motion as regards this new 
point. That a negative answer should be given to this 
question is clearly supported by the authorities. 

Appellant presents only a comparatively new point be¬ 
cause he is again attacking the procedures surrounding 
the correction of his sentence. Since he attacks no other 
phase of his trial, he is bringing forth substantially the 
same issues that were before the court on the first motion. 
Had the lower court refused to consider appellant’s second 
motion he would have no right to appeal since he did not 
appeal the order denying his first motion. The lower court, 
however, exercised its sound discretion, entertained the 
second motion and reviewed the entire case. In the exer¬ 
cise of the same sound discretion, the court overruled the 
second motion and such discretionary exercise of power 
should not be disturbed on appeal. Story v. United 
States, (1950) (C.C.A. 8) 185 F. 2d 952; Moss v. United 

*• For a general treatment of Section 2255 in this jurisdiction see: Smith ▼. 
United States, (1950) 88 App. D.C. 80, 187 F.2d 192, cert, denied 341 UJ3. 
927; and Bruno v. United States, (1949) 86 App. D.C. 118, 180 F.2d 393. 

1T See Bowley v. Welch, (1940) 72 App. D.C. 351, 114 F.2d 499, for the rule 
in this jurisdiction as to when confinement begins. 



16 


States, (1949) (C.C.A. 10) 177 F. 2d 439 ; 18 Birtch v. United 
States, (1949) (C.C.A. 10) 173 F. 2d 316 at 317, cert de¬ 
nied 337 U.S. 944 ; w Martyn v. United States, (1949) 
(C.C.A. 8) 176 F. 2d 609 at 610 f° United States v. Chinn, 
(1949) (U.S. D.C. S.D. W. Va.) 87 F. Snpp. 364; 21 and 20 
A.L.R. 2d 976 at 996; Cf. Barrett v. Hunter, (1950) (C.C.A. 
10) 180 F. 2d 510, cert, denied 340 U.S. 897, pertaining to 
the differences between habeas corpus and a motion to 
vacate sentence under Section 2255 wherein the court said 
in passing (180 F. 2d at 514-515) that the lower court 
should ordinarily entertain a second motion which raises 
new or dissimilar grounds for relief and the record does 
not conclusively show that the prisoner is entitled to no 
relief. 

ni 

Assuming That Appellant was Entitled to Assistance of 
Counsel at the Time He Was Resentenced and Further 
Assuming That the Lower Court Should Have Enter¬ 
tained, as a Matter of Right, the Second Motion to Vacate 
Sentence, Appellant Is Not to Be Released But Merely 
Brought Before the Lower Court and. With Counsel 
Present, Resentenced in Accordance With the Intent of 
the Trial Court. 

Appellant contends that, having served the first sentence 
imposed upon him, he is entitled to be released from prison 
since the second sentence is illegal. He also maintains 
that he has the right to have the trial court entertain his 
second motion to vacate sentence. As pointed out herein 
above, the Government opposes these arguments of ap¬ 
pellant. 

In the first place, the constitutional rights of appellant 
have not been violated in this particular case and he has 

11 For related cases see: Moss v. Hunter, 167 F.2d 683, cert denied 860. 

1 *For related cases see: Birtch v. Hunter, (C.CJL 10) 158 F.2d 134, cert, 
denied 331 U.S. 825; Birtch v. United States, (C.C.A. 4) 164 F.2d 880, cert, 
denied 333 U.S. 848, reh. denied 333 U.S. 870. 

" The court in this case reversed the lower court on other grounds. 

" For related cases see United States v. Chinn, 74 F. Supp. 189; Chinn v. 
United States, 163 FJM 876; and Chinn v. United States, 157 F.2d 1013. 




not been prejudiced by the fact that his counsel was not 
present when the first sentence was vacated and the second 
sentence substituted therefor. In the second place, appel¬ 
lant presented substantially the same questions to the sen¬ 
tencing court in his first motion to vacate sentence as are 
here brought forth and the exercise of the discretionary 
power of the trial court in entertaining the second motion 
should not now be reversed. 

Assuming, however, that appellant’s counsel should have 
been present at the time of resentencing and also assum¬ 
ing that the discretionary power of the lower court can now 
be reviewed, appellant is not to be released from the peni¬ 
tentiary. The law is now well settled that the imposition of an 
illegal or incorrect sentence is not grounds for release. 
Rather, the prisoner is merely to be taken before the trial 
court and resentenced in accordance with the intent of the 
sentencing court and with the applicable provisions of law. 
Martin v. United States, (1950) (C.C.A. 5) 182 F. 2d 225 
at 228; Howell v. United States (1949) (C.C.A. 4) 172 F. 
2d 213 at 215, cert, denied 337 U.S. 906; Wefong v. John¬ 
ston, (1946) (C.C.A. 9) 156 F. 2d 507; Barrow v. United 
States, (1924) 54 App. D.C. 128, 295 F. 949; Egan v. 
United States, (1923) 52 App. D.C. 384 at 398, 287 F. 958; 
Price v. Zerbst (1920) 268 F. 72 at 75. 

CONCLUSION 

Wherefore, it is respectfully submitted that the order of 
the District Court should be affirmed. 

Charles M. Irelan 

United States Attorney 

Grace B. Stiles 

Joseph M. Howard 

Lewis A. Carroll 

Assistant United States Attorneys 


JOINT APPENDIX 


INDEX TO 

JOINT APPENDIX 

. Pa 9 e 

Proceedings at sentencing . 18-20 

Proceedings on motion to vacate sentence in conjunction with a 

writ of error coram nobis. 20-23 

Indictment in Criminal Case No. 904-48 . 23-24 

Sentence imposed in Criminal Case No. 904-48 . 24 

Motion to vacate sentence in conjunction with writ of error 

coram nobis . 24-25 

Petition for writ of error coram nobis. 25-26 

Court order denying motion to vacate sentence in conjunction 
with a writ of error coram nobis. 26 

Indictment in Criminal Case No. 1119-48 . 26-31 

Sentence imposed in Criminal Case No. 1119-48. 31-32 

Motion to vacate sentence . 32-35 

Memorandum Opinion referring the matter to the United States 
Attorney . 35 

Memorandum Opinion . 36-38 





















18 


Monday, October 11, 1948. 

The above-entitled cause came on for sentencing before 
Honorable Jennings Bailey, United States District Judge, 
at 10 o’clock a. m. 

• ••#••• 


[2] PROCEEDINGS 

THE COURT: In the matter of Robert E. Walton, 
Jr., I have just been presented with a writing with the 
notice on it “Average reading time 30 minutes.” I have 
not had 30 minutes—in fact, I have had only one minute— 
so I will postpone this sentence of Walter M. Kendall until 
11 o’clock this morning. 


(Eleven o’clock a. m.) 

THE DEPUTY CLERK: Robert E. Walton, Jr. and 
Walter M. Kendall. 

THE COURT: Robert E. Walton, Jr., have you any¬ 
thing to say before I pronounce sentence? 

DEFENDANT WALTON: The only thing I have, 
your Honor, is I would wish your Honor to keep in mind 
that we have been in District Jail for four months. I 
would also like to thank you for reading that letter before 
passing sentence. 

THE COURT: Do you wish to say anything for them? 

MR. LEONARD: Only in connection that the boys 
were held down in jail almost four months, as your Honor 
knows, and I don’t think it was entirely due to their fault 
there. That is, there were three indictments, as your 
Honor recalls, which were dismissed as being either un¬ 
satisfactory or incomplete, and it was because of those re- 
indictments, of course, that they were held down there so 
long, and I was hoping that [3] your Honor would take 
that into consideration in connection with the sentence. 
Also, there is the matter of the boys’ ages which your 
Honor knows, having before him the report from the pro- 



19 


bation office. Also, this is the first offense as adults. 
They do have a juvenile record, but this is the first offense 
as adnlt offenders. 

THE COURT: Yes, but there are so many offenses. 

You shall be sentenced in one indictment on the charge 
of housebreaking, on one count, larceny and grand larceny 
on another, and other indictments. He is to be sentenced 
on one count of robbery, one count of housebreaking, two 
counts of grand larceny, four counts of forgery, and four 
counts of uttering. 

MR. LEONARD: That is true, your Honor, that the 
offenses are serious and numerous, but of course I do 
think that there is a social factor involved here which 
should be taken into consideration. 

THE COURT: Well, in view of his record I am not 
going to fix a very heavy sentence, but I sentence him to 
one to three years on each offense, all to run concurrently. 

Now, Walter M. Kendall, have you anything to say? 

DEFENDANT KENDALL: No, sir. 

MR. LEONARD: Nothing other than what I have al¬ 
ready said, your Honor. 

THE COURT: Kendall has a long record. He has 
also [4] written an explanation or excuse for some of his 
offenses, but he has shown an entire disregard for the 
rights of others. 

He is to be sentenced in one indictment of housebreaking 
and grand larceny and in another for robbery, and an¬ 
other count of housebreaking and grand larceny, and four 
counts of forgery, and four counts of uttering. 

• •••••• 


(Eleven-fifteen a. m.) 


THE COURT: Walter M. Kendall, I got your name 
and Robert E. Walton’s name confused, and I set aside 


20 


the sentence that I gave you and fix the sentence at one to 
three years on each offense instead of the other. 

• •••••• 

There will be no time allowed for the time in jail. 

Unless either of you have something further to say— 

DEFENDANT WALTON: Pardon? 

THE COURT: If you have anything further to say, I 
would [5] be glad to hear it. 

DEFENDANT WALTON: Yes, your Honor, I do. 

THE COURT: I read your letter through. 

DEFENDANT: There is just one thing I would like 
to ask your Honor. Isn’t it a little bit illegal? You have 
already sentenced me from one to three concurrently. 

THE COURT: The sentence from one to three years is 
vacated and I substituted the other sentences, and those 
sentences were entered and made by mistake in my confus¬ 
ing you and your co-defendant. 

Do you have anything to say, Kendall? 

DEFENDANT KENDALL: Does my time run con¬ 
currently, sir? 

THE COURT: One to three years on each offense, all 
to run concurrently. No time allowed for time in jail. 

(Whereupon, the matter of sentencing was concluded.) 

• •••••• 

[8] February 18, 1949 

The above-entitled action came on for hearing of a 
motion to vacate sentence in conjunction with a writ of 
error coram nobis; affidavit in support of application for 
leave to proceed without prepayment of costs, and affidavit 
for a writ of habeas corpus, before the HONORABLE 
JENNINGS BAILEY, United States District Judge, at ten 
o’clock a.m. 

. . • • • m • • • 



21 


[9] PROCEEDINGS 

THE COURT: Mr. Leonard, I have read yonr brief in 
this case. It does not convince me that I am wrong. 

MR. LEONARD: No; it does not convince me, either, 
Your Honor, but I think there is one distinction which 
could be drawn between the Crawley case, which seems to 
be controlling, and the present situation. 

As I pointed out in the last paragraph and, as I say, I 
don’t think it has too much merit, it is the only thing I 
think deserves any consideration. 

According to the statute, Title 18, Section 3568, in the 
second paragraph of the statute, which has to do with the 
effective date of sentence, it says: 

“If any such person shall be committed to a jail or 
other place of detention to wait transportation to the 
place at which his sentence is to be served, his sentence 
shall commence to run frorft the date on which he is re¬ 
ceived at such jail or other place of detention.” 

[10] In the Crawley case, of course, the defendant was 
held in the elevator which connects the lock-up rooms in 
the basement with the courtroom; and, of course, there is 
this question of whether he was still in the custody of the 
Court at that time or whether he had passed into the custody 
of the executive. 

Of course, here, the boys were taken directly from the 
courtroom to the lock-up. If that lock-up was, as the words 
in the statute say, “or other place of detention,” where 
the boy had passed into the custody of the executive, then 
I think there would be a distinction; but, frankly, I don’t 
think there is much merit to that contention. 

THE COURT: I think it refers to a place like the jail, 
or some other similar place, where he is waiting to be taken 
to the penitentiary, or whatever place he is going to serve. 

As I said before, I sentenced these two men, and I was 
confused about their names, and I inadvertently gave this 
man the sentence I should have given the other, and vice 





22 


versa; and while they were downstairs, before they had 
been taken away, I had them brought up and resentenced 
them. The other man is not complaining. 

MR. LEONARD: That is right, Your Honor. I quite 
agree that is one of the things that is inevitable when there 
is a volume of business,—there is bound to be [11] an inad¬ 
vertence at one time or another. If he had gone to the 
jail, I think there might have been a stronger argument. 

THE COURT: I think there would have been a stronger 
argument, in that case. 

I overrule the motion. 

On the question of application for a writ of habeas 
corpus, I will ask that that be taken before some other 
judge. 

MR. LEONARD: Your Honor, I might say this: Mr. 
O’Leary and I were talking last week, and I don’t believe 
this writ of habeas corpus can lie now, and the boy is no 
longer in this jurisdiction. 

THE COURT: That would be my opinion, if the case 
were before me; but I don’t think I should pass on it, 
because it would be a review of my own action. So, I 
think it should be taken before some other member of the 
Court. 

MR. O’LEARY: If the Court please, I will answer 
to that fact by saying that this Court does not have juris¬ 
diction. 

THE COURT: I say, that would be my view, but I don’t 
think I should pass upon it, for that reason. 

Mr. Leonard, I thank you for your looking after this. 

MR. LEONARD: I was glad to do it. There was quite 
a bit of material on this point, and I was surprised about 
that; arid, although I didn’t have time to get more material 
[12] for Your Honor, I think I brought out the important 
point 

THE COURT: I think it is the simple question of 
whether that is a place of detention within the meaning 








23 


of the rule or statute. My opinion is that it was not; that 
being still in the court, he was still in the control of the 
Court, and I had the right to resentence him. 

Mr. O’Leary, will the Government see that some other 
member of the Court takes up the question of the writ of 
habeas corpus? 

MR. 0 ’LEARY: Yes, Your Honor. 

(Whereupon the above-entitled hearing was concluded.) 

• •••••• 

[14] The United States of America 


vs. 

Robert E. Walton, Junior, Walter M. Kendall 

Criminal No. 904-48 
Grand Jury No. Orig. 

Housebreaking and Larceny 
(22-1801, 2201, 2202, D.C. Code) 

The Grand Jury charges: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall entered 
the building of the Palace Laundry Dry Cleaning Corpo¬ 
ration, a body corporate, with intent to steal property of 
another. 

SECOND COUNT: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall stole the 
property of the Palace Laundry Dry Cleaning Corporation, 
a body corporate, of the value of about $1651.25, consist¬ 
ing of the following: 


40 suits, each of the value of... .$30.00 

1 vest, of the value of.. 3.00 

35 shirts, each of the value of. 2.00 

15 sheets, each of the value of. 2.00 

15 shirts, each of the value of.... 3.00 

15 collars, each of the value of.35 









24 


24 towels, each of the value of. 1.00 

20 pairs of shorts, each of the value of.50 

20 shirts, each of the value of.50 

12 pairs of pants, each of the value of_ 5.00 

8 dresses, each of the value of. 20.00 

4 pairs of gloves, each of the value of... 3.50 

1 radio, of the value of. 15.00 

$5.00 in money 

• •••••• 


[23] United States of America 


v. 

Robert E. Walton, Jr. 
No. 904-48 


On this 11th day of October, A. D., 1948, came the attor¬ 
ney for the government and the defendant appeared in 
person and by counsel, Robert S. Leonard, Esquire. 

It Is Adjudged that the defendant has been convicted 
upon his plea of not guilty and a verdict of guilty of 
the offense of Housebreaking and Larceny as charged 
and the court having asked the defendant whether he has 
anything to say why judgment should not be pronounced, 
and no sufficient cause to the contrary being shown or 
appearing to the Court, 

It Is Adjudged that the defendant is guilty as charged 
and convicted. 

It Is Adjudged that the defendant is hereby committed 
to the custody of the Attorney General or his authorized 
representative for imprisonment for a period of 

Two (2) Years to Six (6) Years on Count 1; 

Two (2) Years to Six (6) Years on Count 2; 
said sentence by the counts of the indictment to 
run concurrently. 

• •••••• 

[24] Motion to vacate sentence in conjunction with a 
Writ of Error Corum Nobis. 








25 


The defendant moves the Court to expunge the sentence 
in the above captioned case, because: 

1. The second sentencing was illegal. 

2. The second sentencing automatically placed the de¬ 
fendant in double jeopardy. 

3. The defendant was sentenced twice for the same 
charges. 

4. The judge erred by imposing a larger sentence on 
the defendant after he had already given the defendant a 
lighter sentence for the same charges. 

Robert E. Walton, Jr., 
Defendant. 

• •••••• 


[25] Petition for a Writ of Error Corum Nobis. 

Comes now your petitioner, Robert E. Walton, Jr., being 
first duly sworn according to law, who deposes and says 
that he is a citizen of the United States, is of legal age, 
and the petitioner in the above entitled action. 

Your petitioner states that he was illegally sentenced 
by the United States District Court in and for the District 
of Columbia, Washington, D. C. for all the following rea¬ 
sons contained herein: 

(1.) That on October 11,1948 at approximately nine-thirty 
(9:30) o’clock A.M. in the United [26] States District Court 
for the District of Columbia, Judge Jennings Bailey sen¬ 
tenced your petitioner to serve from one (1) to three (3) 
years on each of the twelve (12) counts of the indictment, 
all to run concurrently. 

(2.) That on October 11, 1948 at approximately eleven- 
thirty (11:30) o’clock A.M., in the United States District 
Court for the District of Columbia, Judge Jennings Bailey 
recalled your petitioner to the courtroom, withdrew the 
sentence he had imposed, contained in article one (1) of 
this petition, and resentenced your petitioner to serve from 



26 


four (4) to twelve (12) years on the first count of the 
indictment, and from two (2) to six (6) years on each of 
the remaining eleven (11) counts of the indictment, all to 
run concurrently. 

(3.) Your petitioner states therefore, that he was sen¬ 
tenced twice for the same charges on the indictments, and 
thereby placed in double jeopardy which is a direct viola¬ 
tion to the 5th Amendment of the Constitution, and the 
D. C. Code, and the petitioners Constitutional rights. 

[27] (4.) Your petitioner asks the Honorable Court to 
expunge all court records in order to bear out the facts per¬ 
tained to in the above entitled cause. Also your petitioner 
request that the Honorable Court subpeona any witnesses 
that may be needed to bear him out, and that witnessed the 
sentencing. 

(5.) Your petitioner believes that he is entitled to a 
hearing in said suit or action, and seeks the rights given 
him by the Constitution of the United States. 

(6.) Due to the afore mentioned facts your petitioner 
feels that he is entitled to a speedy hearing by the Honor¬ 
able Court, and for such other points of the case as may 
be brought out at the time of the hearing. 

Robert E. Walton, Jr., 
Defendant. 

• *•••*• 

[28] Friday, February 18,1949. 

Come as well the Attorney of the United States, as the 
defendant in proper person, in custody of the Superin¬ 
tendent of the Washington Asylum and Jail, and by his 
attorney, Robert S. Leonard, Esquire; and thereupon the 
defendant’s motion to vacate sentence in conjunction with 
a writ of error corum nobis, coming on to be heard, after 
argument by counsel, is by the Court denied. 


Filed in Open Court Sep. 10,1948—Harry H. Hull, Clerk 




27 


[31] The United States of Amebic a 

v. 

Robebt E. Walton, Jb. 

Walteb M. Kendall 

Criminal No. 1119-48 
Grand Jury No. Orig. 

Robbery 

Grand Larceny 

Housebreaking and Larceny 

Forgery and Uttering 

(22-2901, 2201,1801,1401, D.C.Code) 

The Grand Jury charges: 

On or about May 13, 1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, by 
force and violence and against resistance and by sudden 
and stealthy seizure and snatching and by putting in fear, 
stole and took from the person and from the immediate 
actual possession of George R. Saint-Pol, property of 
George R. Saint-Pol, of the value of about $119.25, con¬ 
sisting of the following: one wallet, of the value of six 
dollars, two dollars in money, one Buick automobile ignition 
key, of the value of twenty-five cents, one watch, of the 
value of one hundred dollars, one fingerring, of the value 
of ten dollars, one automobile driver’s permit, one auto¬ 
mobile registration card, one American Automobile Asso¬ 
ciation membership card and other miscellaneous identifi¬ 
cation cards, all of the value of about one dollar. 

SECOND COUNT: 

On or about May 24,1948, within the District of Columbia, 
Robert E. Walton, Junior stole the property of George R. 
Saint-Pol, of the value of about $2,000.00, consisting of one 
Buick automobile, of the value of about two thousand 
dollars. 

THIRD COUNT: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall entered 






28 


the building of Willis V. Austin, Junior, with intent to 
steal property of another. 

[32] FOURTH COUNT: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall stole the 
property of Willis V. Austin, Junior, of the value of about 
$152.55, consisting of the following: five cans of oil, each 
of the value of ten cents, seven cans of fluid, each of the 
value of ten cents, one radio, of the value of twenty-nine 
dollars and fifty cents, United States postage stamps, of 
the value of ten dollars and ninety cents, fifteen dollars and 
thirty-five cents in money, four suits of coveralls, each of 
the value of five dollars and seventy-five cents, five pairs 
of pants, each of the value of four dollars and seventy-five 
cents, five shirts, each of the value of two dollars and 
twenty-five cents, two belts, each of the value of one dollar 
and seventy-five cents, two pens, each of the value of three 
dollars, two screw drivers, each of the value of fifty cents, 
two pairs of pliers, each of the value of thirty cents, one 
tire iron, of the value of fifty cents, five cartons of cigarettes, 
each carton of the value of one dollar and ten cents, one 
pair of slacks, of the value of five dollars, one shirt, of the 
value of two dollars, one sweater, of the value of two dol¬ 
lars, one coat, of the value of five dollars, two flashlights, 
each of the value of fifty cents, one pencil, of the value of 
two dollars, and one checkbook, of the value of three dol¬ 
lars and fifty cents. 

FIFTH COUNT: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall, with 
intent to defraud, forged in its entirety a bank check, of 
which the following is a copy: 

[33] “Austin’s Esso Service Station 
4866 Massachusetts Avenue, N.W. 

Washington 16, D. C. 


29 


Washington, D.C., Jnne 8,1948 No. 110 


(F) THE RIGGS NATIONAL BANK 15-3 

Friendship Branch 511 

Wisconsin Ave. & Warren St., N.W. 

Pay to the order of George R. Saint-Pol.$43.27 

Forty-three & Twenty-seven cents.DOLLARS 


AUSTIN’S ESSO SERVICE STATION 

Joseph E. Austin” 

and the back thereof containing the endorsement “George 
R. Saint-Pol 3511 Rodman St. N.W.”. 

SIXTH COUNT: 

On or about June 9,1948, within the District of Columbia, 
Robert E. Walton, Junior and Walter M. Kendall, with 
intent to defraud, passed out and uttered to Ezekiel Abra¬ 
ham as true and genuine the forged bank check, a copy of 
which is set forth in the fifth count of this indictment, well 
knowing the aforesaid check was forged. 

SEVENTH COUNT: 

On or about June 11,1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, with 
intent to defraud, forged in its entirety a bank check, of 
which the following is a copy: 

“Austin’s Esso Service Station 
4866 Massachusetts Avenue, N.W. 

Washington 16, D.C. 

Washington, D.C. June 9 1948 No. 120 


(F) THE RIGGS NATIONAL BANK 15-3 

Friendship Branch 511 

Wisconsin Ave. & Warren St., N.W. 

Pay to the order of George R. Saint-Pol.$49.27 

Forty-nine dollars & Twenty seven cents.DOLLARS 


AUSTIN’S ESSO SERVICE STATION 

Joseph E. Austin” 







30 


[34] and the back thereof containing the endorsement 
“George R. Saint-Pol 3511 Rodman St. N.W.”. 

EIGHTH COUNT: 

On or about June 11, 1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, 
with intent to defraud, passed and uttered to Clifford An¬ 
derson as true and genuine the forged bank check, a copy 
of which is set forth in the seventh count of this indict¬ 
ment, well knowing the aforesaid check was forged. 

NINTH COUNT: 

On or about June 12, 1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, 
with intent to defraud, forged in its entirety a bank check, 
of which the following is a copy: 

“Austin’s Esso Service Station 
4866 Massachusetts Avenue, N.W. 

Washington 16, D.C. 

Washington, D. C. June 9 1948 No. 116 


(F) THE RIGGS NATIONAL BANK 15-3 

Friendship Branch 511 

Wisconsin Ave. & Warren St., N.W. 

Pay to the order of George R. Saint-Pol.$51.82 

Fifty-one & Eighty two cents.DOLLARS 


AUSTIN’S ESSO SERVICE STATION 

Joseph E. Austin” 

and the back thereof containing the endorsement “George 
R. Saint-Pol 3511 Rodman St. N.W.”. 

TENTH COUNT: 

On or about June 12, 194S, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, 
with intent to defraud, passed and uttered to Adeline Felix 
as true and genuine the forged bank check, a copy of which 







31 


is set forth in the ninth count of this indictment, well know¬ 
ing the aforesaid check was forged. 

[35] ELEVENTH COUNT: 

On or about June 12, 1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, 
with intent to defraud, forged in its entirety a bank check, 
of which the following is a copy: 

“Austin’s Esso Service Station 
4866 Massachusetts Avenue, N.W. 

Washington 16, D.C. 

Washington, D.C. June 10 1948 No. 132 


(F) THE RIGGS NATIONAL BANK 15-3 

Friendship Branch 511 

Wisconsin Ave. & Warren St., N.W. 

Pay to the order of George R. Saint-Pol.$51.82 

Fifty-one dollars & Eighty two cents.DOLLARS 


AUSTIN’S ESSO SERVICE STATION 

Joseph E. Austin” 

and the back thereof containing the endorsement “George 
R. Saint-Pol 3511 Rodman St. N.W.”. 

TWELFTH COUNT: 

On or about June 12, 1948, within the District of Colum¬ 
bia, Robert E. Walton, Junior and Walter M. Kendall, 
with intent to defraud, passed and uttered to Ellen 
Johnson as true and genuine the forged bank check, a copy 
of which is set forth in the eleventh count of this indict¬ 
ment, well knowing the aforesaid check was forged. 
##**#«* 

[41] United States of America 

v. 

Robert E. Walton, Jr. 

No. 1119-48 


On this 11th day of October A. D., 1948 came the attor- 








32 


ney for the government and the defendant appeared in 
person and by counsel, Robert S. Leonard, Esquire. 

It Is Adjudged that the defendant has been convicted 
upon his plea of guilty of the offense of Robbery; Grand 
Larceny; Housebreaking and Larceny; Forgery and Utter¬ 
ing as charged and the court having asked the defendant 
whether he has anything to say why judgment should not be 
pronounced, and no sufficient cause to the contrary being 
shown or appearing to the Court, 

It Is Adjudged that the defendant is guilty as charged 
and convicted. 

It Is Adjudged that the defendant is hereby committed 
to the custodv of the Attornev General or his authorized 

* m 

representative for imprisonment for a period of 

Four (4) Years to Twelve (12) Years on Count 1; Two 
(2) Years to Six (6) Years on Counts 2, 3, 4, 5, 6, 7, 8, 9, 
10, 11 and 12; said sentence by the counts of the indictment 
to run concurrents and to run concurrents with the sen- 

V •» 

tence imposed in Criminal Case No. 904-48. 


[48] MOTION TO VACATE SENTENCE. 


May it please the Court: 

Comes now, Robert E. Walton, Jr., the petitioner in the 
above entitled cause and moves that this honorable Court 
vacate and hold null and void the four to twelve year sen¬ 
tence the petitioner is now serving in the United States 
Penitentiary, Leavenworth, Kansas. 

Petitioner contends that the said sentence of four to 
twelve years is illegal, and that the petitioner is being de¬ 
prived of his liberty without “due process of law,” and 
states his contentions as follows: 

JURISDICTION 

That this honorable Court has jurisdiction over the sub- 





33 


ject matter in this Motion, pursuant to Title 28, Section 
2255, U. S. C. A. 

[49] STATEMENT OF PROCEEDINGS 

Petitioner, was on the 11th day of October, 1948, sen¬ 
tenced by the Honorable Judge Bailey of this United States 
District Court, to a term of one to three years and later 
that same day said Court increased this term to four to 
twelve years. Petitioner plead not guilty to Case No. 
904-48 and guilty to Case No. 1119-48; however, petitioner 
was sentenced for both cases simultaneously, both cases Tun¬ 
ing concurrently. 

CONTENTIONS. 

(a) —That this Court had no legal authority to increase 
petitioner’s original sentence from one to three years to a 
sentence of four to twelve years, on the same offenses. 

(b) —That the petitioner was denied the Constitutional 
right to have counsel assist him at the time he received the 
increased illegal sentence. 

(c) —That the petitioner having served the maximum 
amount of the legal one to three year sentence, is now en¬ 
titled to his release. 


ARGUMENT. 

Point No. 1. The Court was without legal jurisdiction 
to increase petitioner’s sentence from one to three years 
to from four to twelve years. As the judgment of the 
Court was final when the petitioner left the Courtroom, 
and to bring him back and resentence him to a longer 
period was cruel and inhumane punishment, prohibited 
by the Constitution of the United States. 

[50] The following authorities affirm the contentions of 
the petitioner that the Court was without jurisdiction to in¬ 
crease his sentence, once given: 

Stidham v. Swope, Warden, United States Penitentiary, 
Alcatraz, California, No. 28768H D. C. N. D., Calif. April 
6,1949; 



34 


Simmons v. U. S. 89 F. 2d 591; 

Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; 

U. S. v. Murray, 275 U. S. 347, 48 S. Ct. 146-149, 72 L. 
Ed. 309; 

U. S. v. Bentz, 282 U. S. 104. 

It is respectfully pointed out to this honorable Court 
that the petitioner was taken from the Courtroom and not 
brought back until some two (2) hours later, at which time 
the petitioner’s counsel was not present. It was then that 
the increased sentence was given. 

Point No. 2. Petitioner was denied counsel at the time 
of the increase in his sentence of from one to three years 
to the sentence of from four to twelve years. Thus, after 
being sentenced to a term of one to three years with 
counsel, the right of counsel was withheld and taken away 
and he was brought back and the Court illegally increased 
his sentence. 

At this point of the case it was of the greatest importance 
for him to have been represented by counsel. This is espe¬ 
cially true when he had counsel at the first sentence and 
did not waive counsel at the time of the increased sentence. 

The petitioner was without legal aid at the time he needed 
it and was entitled to it most; as his attorney would have 
been required to object to such extra-judicial and illegal 
procedures as increasing a sentence after it had been once 
entered. (Hope v. Utah, S. Ct. 202, 26 L. Ed. 267), and 
(Stidham v. Swope, supra). 

This was a gross violation of the petitioner’s Constitu¬ 
tional rights that was so flagrant that it is unnecessary to 
cite the law or authorities. In fact, it was much more flag¬ 
rant than the issues involved in the Glasser Case which was 
reversed by the Supreme Court, (Glasser v. U. S. 315, 
U. S. 60), for Glasser was an attorney, and was fully aware 
of Courtroom Procedure, while the petitioner was helplessly 
uninformed and without any knowledge of such procedure, 
even ignoring the fact that he was only nineteen (19) years 






of age and still needed and was entitled to legal representa¬ 
tion at such an important phase of his case. 

Also see: 

Powell et al. v. Ala., 287 U. S. 45, 53 S. Ct. 35, 77 L. Ed. 

188, 84 A. L. R. 527; 

and 

Constitutional Amendment V. 

For the reason that the petitioner was denied the Consti¬ 
tutional Right of Counsel at the time of his increased sen¬ 
tence, the illegal sentence of twelve (12) years must be 
vacated and held void. 

THEREFORE, good and just cause being shown herein, 
petitioner prays that this honorable Court issue the order 
or orders directing that the petitioner be discharged from 
further service on this illegal sentence of from four to 
twelve years. 

##•#*** 


[54]. MEMORANDUM OPINION 

Following the Court’s memorandum of February 11, 
1952, the sentencing judge returned the pending motion 
to vacate sentence to the assignment commissioner for 
disposition. 

It appearing that the defendant-petitioner herein has 
not made clear the issue with regard to a previous sentence 
of the United States District Court for the District of 
Columbia in Criminal Case No. 904-48, wherein the said de¬ 
fendant-petitioner was sentenced on October 11, 1948, to 
serve a term of two to six years, and that term not having 
expired, the case is referred to the United States Attorney, 
in order that a pleading may be prepared as to the facts not 
only in Criminal Case No. 904-48, but in Criminal No. 
1119-48, with direction that all pleadings be served on 
defendant-petitioner and that proper issues be framed in 
the case. 





36 


[61] MEMORANDUM 

This matter is before the Court on a motion filed by- 
Robert E. Walton, Jr., on January 10, 1952, in proper 
person, seeking to vacate a sentence heretofore imposed 
on him by Judge Jennings Bailey in the United States 
District Court for the District of Columbia on October 
11, 194S. 

The facts from the record appear to be that the peti¬ 
tioner, Robert E. Walton, Jr., was jointly charged with 
one Walter M. Kendall in two criminal indictments, namely, 
Criminal Case No. 904-48 charging each with the offenses 
of housebreaking and grand larceny and Criminal Case 
No. 1119-48 charging each with the crimes of housebreak¬ 
ing, larceny, robbery, four counts of forgery and four 
counts of uttering. On September 16, 1948, the petitioner 
withdrew his plea of not guilty in Criminal No. 1119-48 
and entered a plea of guilty and was sentenced on October 
11, 1948 on twelve counts. With regard to Criminal Case 
No. 904-48 the defendant was convicted by a jury on both 
counts of the indictment. On October 11, 1948, the peti¬ 
tioner was present in open Court with his counsel when 
Judge Bailey imposed a sentence of “one to three years 
on each offense to run concurrently”. The Court at the 
same time imposed a sentence on the co-defendant, Walter 
M. Kendall of four to twelve years on robbery and two 
to six years on the other charge all to run concurrently. 
At that time the counsel for both men, Robert S. Leonard, 
Esq., was present and made representations in their behalf 
and he was evidently also present at the time pleas of 
guilty were entered. Apparently the sentencing Judge con¬ 
fused the identity of the defendants and at 11:15 o’clock, 
A.M., on the same day, stated as follows: 

“Walter M. Kendall, I got your name and Robert E. 
Walton’s name confused, and I set aside the sentence 
that I gave you and fix the sentence at one to three 
years on each offense instead of the other. 

And Walton, I made the same mistake with you, 
and I fix your sentence at from four to twelve years 
on the charge of robbery and from two to six years 
on these other counts; all to run concurrently.” 






37 


And the Court also recommended that the previous sen¬ 
tence be vacated and the new sentence substituted, thus 
correcting the previous sentences imposed by mistake. 

The Court finds as a fact that the interim of time 
allowed between the original sentence and the amended 
sentence, fifteen minutes later, would be sufficient time 
only for the petitioner to have been taken from the third 
floor courtroom of Judge Bailey, down to the cell block 
on the first floor and immediately returned to the court¬ 
room for a corrected sentence. 

The power of the Court to change the sentence was the 
subject of a “motion to vacate sentence’’ filed by the peti¬ 
tioner in conjunction with a writ of error corum nobis. 
Judge Bailey heard the motion on February 18, 1949. The 
issue apparently concerned itself with the question of 
whether the defendant, Walton, had been committed to a 
jail or “a place of detention” and had begun to service his 
sentence. It must be “conceded that if appellant had 
begun to serve the sentence as originally pronounced, it 
was beyond the [63] court’s power to make the amend¬ 
ment.” Ex parte Lange, U.S. 1874, 18 Wall. 163, 21 L.Ed. 
872; Rowley v. Welch, 72 App. D.C. 351. With Judge 
Bailey’s attention drawn to the case of Rowley v. Welch, 
supra, he stated as follows: 

“I think it (the place of detention) refers to a place 
like the jail, or some other similar place, where he is 
waiting to be taken to the penitentiary, or whatever 
place he is going to serve. 

• * • 

I think it is the simple question whether that is a 
place of detention within the meaning of the rule of 
statute. My opinion is that it was not; that being 
still in the court, he was still in the control of the Court, 
and I had the right to resentence him.” 

The Court’s error was corrected within an extremely 
short time of the first sentence and before the defendant 
had been taken to jail, transferred to the custody of the 
Executive branch of the United States Government and a 



38 


commitment issued. The above finding appears to be the 
law of the case. It is fully suported by the Rowley v. 
Welch case, supra , wherein the appellant had been sen¬ 
tenced and was sent downstairs on the elevator, later re¬ 
called, sentence vacated and a new sentence substituted. 

The record in this case indicates that Robert S. Leonard, 
Esq., the attorney for both defendants, although present at 
the hearing of the original sentence was apparently not in 
court when the sentence was changed. While the appear¬ 
ance of counsel at several stages of the proceedings is im¬ 
portant, his absence when the correction took place in no 
wise affected the rights of the defendant, Walton. Prior to 
the passing of sentence, Mr. Leonard made a statement to 
the Court, and the Court seemingly acknowledged his rec¬ 
ommendations, for with the petitioner’s multiple pleas of 
“guilty” and prior record, he still limited the total sentence 
to “from four to twelve vears”. It is difficult to imagine 
[64] what new mitigating circumstances could have inter¬ 
vened for the court’s consideration in the period of fifteen 
minutes. Batson v.* United States, 137 F.(2d) 288. The 
calling back of the defendant was for the sole purpose of 
pronouncing sentence in accordance with the court’s true 
intent. No prejudice is shown to have resulted from coun¬ 
sel’s absence, therefore, this court holds as a matter of fact 
and of law that the present motion to vacate the sentence 
be overruled. 


☆ U. S. Govm m ut Pr i nl in e Offica. 1932 217908